Badzovski v Karovski

Land and Environment Court (NSW)|2021-12-16

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application

COMMISSIONER: The Bexley property belonging to Paskal Badzovski ('the applicant') sits above a rock wall, separating it from the lower land of the adjoining property belonging to Trajan Karovski and Ilija Petrevski ('the respondents'). The common boundary shared by the parties is on the higher land near the top of the rock wall. An old timber paling fence, dilapidated in places and absent in others, runs along the common boundary. Vegetation, mostly growing on the respondents' side of the fence, is pushing against and through the fence in places. A camphor laurel ('Tree 1') appears to partly grow across the boundary.
Mr Badzovski has applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking removal of Tree 1 and other vegetation along the fence line at the respondents' expense, and for replacement of the boundary fence and its cost shared by the parties.

The hearing

The matter was heard via MS Teams. Mr Badzovski was self-represented, while Mr Steven Karovski, the first respondent's son, represented the respondents. With the material filed by both parties, considered along with their submissions, I was able to make a decision without requiring a subsequent site view.
The respondents' names were incorrect in Mr Badzovski's application, and hence were recorded incorrectly by the Court. Leave was granted during the hearing for the application to be amended, recording the respondents' names correctly.

Reasons for the application

Mr Badzovski wants to replace the timber fence along the common boundary. He says the respondents' trees have damaged the fence, and elsewhere the fence is old and dilapidated so that a new fence is required for the length of the common boundary. Mr Badzovski is concerned about the risk of someone on his property falling down the considerable drop just beyond the boundary.

Framework for the Pt 2 application

The key jurisdictional threshold tests under Pt 2 of the Trees Act are set out at s 10: 10 Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person.
Before making any orders as set out at s 9, the Court must consider the matters at s 12 of the Trees Act.

The applicant made reasonable effort

Mr (Steven) Karovski submitted that Mr Badzovski spoke with his father about the fence around three years ago, when his father suggested to Mr Badzovski that he should talk to someone at Bayside Council. Mr Karovski says the applicant made no further contact, so he does not believe the applicant's effort has been reasonable. Mr Badzovski wrote in his application that he has "made multiple phone calls trying to fix this matter". This was not directly disputed by the respondents. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, Chief Justice Preston explained that the wording used at s 10(1)(a) of the Trees Act is less demanding than a similar requirement in some other legislation. I accept that the applicant has spoken with the respondents about the issue and it was not resolved. I am satisfied that his effort was reasonable.

The fence has been damaged by trees

Although the fence is generally aged and dilapidated, it is clear from photographs supplied to the Court that Tree 1 has grown against the fence, displacing it and damaging it, and smaller trees on the respondents' property along the fence line have also displaced and damaged the fence.

Are the trees on the respondents' land?

Mr Badzovski's application shows Tree 1 and other trees are located on the respondents' land. He included a copy of a survey plan he commissioned three years ago for reasons unrelated to this application. That plan shows Tree 1's stem entirely on the respondents' property.
Mr Karovski argued that the survey plan was unreliable, as it did not include the surveyor's name and qualifications, nor did it show other trees such as the smaller trees along the boundary drawn on a plan in Mr Badzovski's Pt 2A application. The respondents provided photographs showing that Tree 1 is on or close to the fence line, so the Court could not be satisfied that it was on their land. The respondents also referred to Bayside Council's letter of consent dated 20 August 2018, which has Mr Badzovski's address and states: "We refer to your application seeking approval to remove a Camphor Laurel tree situated within the above property." The letter grants consent to remove the tree on the "Eastern boundary fence". I am not convinced that this demonstrates that the tree is on the applicant's land, only that Council's officer did not investigate that issue further.
While the respondents' photographs suggest some ambiguity regarding Tree 1's location relative to the boundary, the applicant's photographs show part of the fence remaining on his side of the tree, strongly suggesting the tree is on the respondents' land. This is further supported by the survey plan, which I do not rely on solely, but it does provide relevant assistance. Of course, fences are often located other than directly on the common boundary, so some ambiguity remains. In some tree disputes, the Court has ordered further surveys be undertaken, but this seems unnecessary here for several reasons. Firstly, a more detailed survey would incur additional and unnecessary expense. Secondly, I am satisfied that other smaller trees that are on the respondents' land have damaged the fence. This gives the Court the jurisdiction to make orders to replace the entire fence, as per s 13A of the Dividing Fences Act 1991 (Fences Act). Replacing the entire fence is the applicant's aim and his preferred outcome, and appears to me to be the sensible and safe outcome. Thirdly, Tree 1 is a weedy tree species, unlikely to have been planted here, but rather more likely to be self-sown, like the other smaller trees along this boundary. As Mr Badzovski stated, its removal is required to replace the fence. Therefore orders will be made for the cost of removing Tree 1 to be shared by the parties. Sharing the cost of fencing work for a sufficient dividing fence is the typical outcome when orders are made under the Fences Act. Fencing work includes the removal of vegetation for preparing the land for a fence (s 3 of the Fences Act). Had I found Tree 1 to be on the applicant's land, that would not prevent me making the orders made below, nor would the nature of the orders be any different.
Although the cost of removing Tree 1 will be shared by the parties, the applicant will arrange Tree 1's removal given that access will be through his land. Orders will then be made for the parties to replace the fence and to share its cost, including the removal of other vegetation along the fence line. Both parties expressed a preference for a steel panel (e.g. Colourbond) fence.
Before making the orders below, I considered the matters at s 12 of the Trees Act. Tree 1 and other trees along the common boundary provide little benefit to the environment or the local community. They are weedy species. There is nothing about the trees that would persuade me to make orders differently to those made below.

Reasons for the application

Mr Badzovski claims that weedy trees along the respondents' side of the boundary form a hedge that obstructs sunlight to his windows. Section 14A of the Trees Act limits the trees to which Pt 2A applies. 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level).
Mr Badzovski wrote in his application that the trees were not planted but were self-sown. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, Chief Justice Preston explained that this section's wording requires the trees to be planted by human hand with the intention to form a hedge. Therefore, Pt 2A of the Trees Act does not apply to these trees and I can make no orders under that Part.

Orders

As a result of the foregoing, the Court orders: 1. The Pt 2A application is refused. 2. The Pt 2 application is granted to the extent of the following orders. 3. Within 28 days of the date of these orders the applicant and the respondents are each to obtain and provide to the other party a quote from a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the camphor laurel (Tree 1) to ground level and grind its stump. 4. Within 60 days of the date of these orders, the applicant is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the camphor laurel (Tree 1) near the common boundary and grind out its stump to a depth of 200 mm below ground level. The works are to be done in accordance with the 2016 Safe Work Australia 'Guide to managing risks of tree trimming and removal work'. 5. Within 90 days of the date of these orders the respondents are to pay the applicant 50% of the cheapest quote from order (3) after receiving a copy of a receipted paid invoice for the removal of Tree 1. 6. Within 28 days of the date of these orders the applicant and the respondents are each to obtain and provide to the other party a quote from a fencing contractor for: 1. removing the fence along their common boundary, 2. clearing vegetation within 500 mm of the common boundary along both sides of the boundary and any other vegetation that would obstruct construction of a new fence along the boundary, and 3. constructing a new fence along the common boundary as follows: 1. 1.8 m tall steel panel (e.g. Colourbond) fence on steel posts at least 600 mm into the ground secured with concrete in the ground. The quotes are to be made out to both the applicant and the respondent, with each party to pay 50% of the cost. 1. Within 35 days of the date of these orders the parties are to select the cheapest of the two fencing quotes, unless they agree on the other quote. The parties are to engage the selected contractor under a fencing agreement, in which the applicant agrees to pay 50% of the cost of the works and the respondents agree to pay 50% of the cost of the works, to carry out the fencing works within 90 days of the date of these orders. The parties are to pay the contractor as per the terms of the agreement. 2. The parties are to allow all access necessary for the fencing contractor to complete the works during reasonable hours of the day.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2022

(2012) 190 LGERA 334

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